Jose Angel Carachuri-Rosendo, a lawful permanent resident, was convicted of two drug related misdemeanors in Texas, First he was convicted of possession of less than two ounces of marijuana and then he plead guilty to possession of one anti-anxiety pill without a prescription.

Normally conviction of a misdemeanor does not result in deportation. But under Federal law and under Texas law a second possessory conviction can be charged as a felony. Narcotics related felonies are considered aggravated felonies and are subject to deportation. Furthermore those convicted of aggravated felonies cannot request discretionary cancellation of removal which allows a judge to determine whether an individual should stay in this country despite he/she being deportable.

The district attorney in Texas had the option of charging Carachuri-Rosendo as a recidivist with a felony. But they did not. None the less, the Federal government moved for deportation because under Federal law he could have been charged as a felon and be deported.

In 2006 the Supreme Court ruled in Lopez v. Gonzales that only those narcotics related crimes that are chargeable under Federal law as felonies subject a person to deportation. In other words, if a person is convicted of a felony in state court but under Federal law it is a misdemeanor the person cannot be deported. For example, if possession of a drug is a felony in some states but can only be charged as a misdemeanor in Federal Court the person cannot be deported.

The Court of Appeal therefore decided that since it could have been a felony if if it had been charged in Federal Court, it should be treated as an aggravated felony. But the Supreme Court found that since he had not been convicted of a felony it was not an aggravated felony. While Carachuri-Rosendo is deportable he is subject to cancellation of removal and the District Court must use its discretion on whether or not he should be deported.

The Supreme Court Monday decided that the Federal District Courts did not lose jurisdiction to set restitution ninety days after sentencing despite a ninety day deadline in the Mandatory Victims Restitution Act.

The Mandatory Victims Restitution Act provides that, if the information is available the court shall set the amount of restitution at sentencing. If ten days before sentencing their is insufficient information to set the amount of restitution the court shall set a date within ninety days after sentencing for the setting of of restitution. It makes provision for increasing the amount of restitution if the victim later discovers further losses.

In the case of Brian Russell Dolan who was convicted of assault with serious bodily injury the court did not have sufficient information at sentencing to set restitution but it did recognize the need to set an amount. Prior to the conclusion of the 90 day period the probation department provided a proposed amount of restitution and the court set a hearing date, without explanation or objection, for a couple of months after the ninety day period ended.

The Supreme Court ruled that the District Court continues to have jurisdiction after the ninety day period ends. It based its holding on six points. First, the statute does not set a specific consequence for violating the ninety day rule. Second, the statute places considerable emphasis on the need for restitution. Third, the drafters of the statute placed more importance on the complete payment of restitution than on the need for finality in sentencing. Fourth, to make the ninety day limit jurisdictional would injure victims who have no control over the dates. Fifth, the Supreme Court has found that other statutes, while setting dates do not remove the power of the courts to act after similar deadlines. Finally, the defendant, at least in this case could have requested an earlier hearing.

The dissent, by Chief Justice Roberts claims that the court does not have the power to alter the clear words of the statute. But requiring strict adherence to the statute would put the court in the strange position of not being able to set restitution after the ninety day period but still being able to assess restitution for damages found by the victim, but unknown at the time of sentencing. Dolan claimed that he would be seriously injured by the failure to follow the language of the statute. For example that might extend indefinitely the period before he could file his appeal. But the court indicated that a case could be final and the appeal could be filed before the setting of restitution.

Albert Holland was convicted of murder in Florida and sentenced to death. He appealed his conviction to the U. S. Supreme Court which denied cert on October 1, 2001, ending direct review and starting a one year period, mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA) within which he may file a Federal habeas. Post conviction counsel, Bradley Collins, was appointed on November 7, 2001.

Twelve days before the year was up Collins filed post conviction motions in State Court tolling the AEDPA deadline. The Florida Supreme Court denied the state motions which became final on December 1, 2005.

During this period Holland wrote numerous unanswered letters to Collins to check on the status of his motions and to remind him to file to file the motions timely. When he did not get answers the wrote to the court and to the state bar asking for information and the replacement of Collins.

Collins did write him one letters and incorrectly told Holland that the deadline passed prior to Collins’ appointment. Three months after the AEDPA deadline passed Collins sent Holland a draft of a writ. After the deadline but prior to the mailing of the draft, Holland filed his own writ which was opposed by the Attorney General on the basis that while he had counsel only Collins could file a writ.

Collins was allowed to resign from the case, new counsel was appointed and the issue of equitable tolling of the statute was briefed to determine whether the late brief would be considered. Both the District Court and the Eleventh Circuit Court of Appeal held that while equitable tolling was allowed Holland did not meet the criteria for equitable tolling.

The Eleventh Circuit held:

that equitable tolling could not be applied in a case, like Holland’s, that involves no more than ‘pure professional negligence’ on the part of a petitioner’s attorney because such behavior can never constitute an ‘extraordinary circumstance.’ . ., .

We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.

The Supreme Court remanded the case to the Eleventh Circuit finding that its test was too strict for a determination whether an equitable tolling of the statute was appropriate. In this case it ruled that “an attorney’s failure to satisfy professional standards of care” was sufficient and it remanded the case to the Eleventh Circuit for reconsideration.

While this is a step in the right direction, the real problem is with the AEDPA. Particularly in capital habeas where just about always counsel is appointed and not retained. The defendant does not get to pick his/her attorney. Yet we allow the failure of counsel to timely file papers (and the deadlines are often obscure and change over time) to result in a defendant losing the right to file the Great Writ and challenge his/her death penalty.

The Supreme Court ruled that in order to assert Miranda rights an arrestee must verbally tell the officer that he/she does not want to talk to the officer or that he she wants to maintain silence.

Van Chester Thompkins was charged with murder in a Michigan Court. After his arrest in Ohio two Michigan police officers traveled to Ohio to interrogate him. They spent three hours questioning him but during most of that time he was silent. Towards the end of the interrogation the officers asked him if he prayed to god to forgive him for the murder. He said yes and the answer was used against him at trial after his motion to suppress the answer was denied.

On habeas the Michigan Court of Appeals held that Thompkins did not invoke his Miranda rights and that he waived the right by answering the officer’s question, a position rejected by the Sixth Circuit Court of Appeals but accepted by the Supreme Court.

Justice Sotomeyer wrote the dissent. She pointed out that in the Supreme Court held that “If [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent” or if he “states that he wants an attorney,” the interrogation “must cease.” It would seem that a two and three quarter hour silence would be an indication that Thompkins wanted to remain silent. In Miranda the Court wrote:

“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.”

As Sotomeyer points out this seems to be pretty much on point but it was ignored by the majority. As the Court stated in Miranda: “a valid waiver will not be presumed … simply from the fact that a confession was in fact eventually obtained.”

Perhaps the most ironic part of the decision is that arrestees must now verbally assert their desire to remain silent. The common Miranda right read to arrestees says that the arrestee has a right to ask for an attorney and the right to remain silent. It says nothing about stating that the arrestee must state that he/she wants to remain silent.

The United States Supreme Court reversed a conviction for violating the Sex Offender Registration and Notification Act (SORNA). SORNA, passed by Congress in 2006 makes state sex offenders registration laws more uniform and effective. It makes it a Federal crime for 1) people who are required to register as a sex offender to (2) travel in interstate or foreign commerce, and (3) knowingly fail to register or update a registration.

The Seventh Circuit Court of Appeals ruled that a conviction could be upheld even though the required travel occurred prior to the passage of the act as long as the defendant had sufficient time after the passage of the act to register. The Supreme Court ruled that since the restriction on interstate travel only affects those who are required to register and since the Federal requirement to register did not occur before the passage of the act in 2006, the travel had to occur after the act’s passage. Furthermore the act uses the present tense to indicate the travel requirement and Congress thereby indicated that the travel that the travel could not occur before the act was imposed.

In May 2004 Thomas Carr plead guilty to first-degree sexual abuse in Alabama. Later that year or in the beginning of 2005 he moved to Indiana and failed to comply with Indiana’s registration requirements. Even though SORNA did not take effect until 2006 the United States Attorney charged him with violating the act when he failed to register after the act took effect. The Seventh Circuit Court of Appeals upheld the conviction based on the pre-enactment travel and the Supreme Court reversed.

By holding that the law requires that the travel occur after the enactment of the act the Court avoided considering whether or not the law violated the Constitution’s ex post facto clause which bans punishing people for acts committed before a law is passed making the act illegal.

In either case the decision is for the best. Otherwise people could be punished for acts that occurred many years ago. State registration statutes have been in effect for many years and the states are capable of punishing people who failed to register prior to 2006.

Glen Marcus was convicted of engaging in unlawful forced labor and sex trafficking between January 1999 and October 2001. The problem is the statute making forced labor and sex trafficking illegal was not enacted until 2000. Therefore much of the evidence at trial concerned acts that were legal at the time they were committed.

Of course someone cannot be convicted for committing a legal act. The Constitution and basic rules of fairness prohibit ex post facto laws which penalize events that happened prior to the passage of a statute making an event illegal. For some reason neither defense counsel nor the judge realized that some of the acts were performed prior to the effective date of the statute. Therefore no instruction was given to the jury informing them of the effective date of the statute.

Marcus’ appellate attorney caught the error and raised the issue before the Second Circuit Court of Appeals. The problem is that generally you cannot raise an issue that was not raised in the trial court. An exception occurs however for “plain error.” The issue raised before the Second Circuit and before the Supreme Court is how to define “plain error.”

The Second Circuit ruled “if it was possible for the jury—wh[ich] had not been given instructions regarding the date of enactment—to convict exclusively on [the basis of] pre-enactment conduct, then the conviction constitutes a violation” of the Ex Post Facto Clause and must be reversed.

The Supreme Court, while not ruling on the issue of whether “plain error” occurred, returned the case to the Second Circuit finding that its definition of “plain error” was wrong. Citing Puckett v. United States the Supreme Court ruled that a five part test exists to find “plain error:”

(1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

The Second Circuit’s “possibility test” fails to meet the third and fourth element. A mere possibility neither affects the outcome of the trial or the fairness of the trial. therefore the Supreme Court returned the case to the Second Circuit for further consideration.

Justice Stevens dissented. He pointed out that Rule 52(b) of the Federal Rules of Criminal Procedure which mandates the use of the “plain error” test merely states:

A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.

Therefore Justice Stevens believes that the only issue should be whether the use of evidence of events that occurred before the law was enacted and the failure to inform the jury of such violated a substantial right of Glenn Markus and he would reverse the conviction. It makes sense–doesn’t it.

Martin O’Brien and Arthur Burgess attempted an armed robbery of an armored vehicle. The were arrested and charged in a multi-count indictment with possession of a gun during a violent crime in Count III which carries a minimum sentence of five years and in Count IV with possession of a machine gun during a crime of violence which carries a minimum sentence of 30 years.

Both are violations of 18 USC Section 924(c). The government was not sure it could prove count IV beyond a reasonable doubt so they dismissed the count and tried to come in through the back door. At sentencing they tried to use it as a sentencing enhancement. This way they did not have to present the issue to a jury and only had to prove it by a preponderance of the evidence. But the United States Supreme Court said no. It said that possession of a machine gun is an element of the offense and had to be tried to a jury and proved by a beyond a reasonable doubt standard.

The Court used a five step test to determine whether it is a element of the offense or a sentencing enhancement: (1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history.” The first factor by itself is insufficient and the Supreme Court found nothing overwhelming in the statute which reads:

“(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime–

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

“(B) If the firearm possessed by a person convicted of a violation of this subsection–

“(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

“(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.” 18 U. S. C. §924(c)(1)

It is true that the section dealing with the machine gun is in a different section from the other elements when when considered against the other factor this is insufficient.

As to the second factor characteristics related to the offense are generally elements while characteristics related to the defendant are often sentencing factor. The nature of the gun refers to an offense characteristic.

As to the third factor, treating the nature of the weapon as a sentencing factor may create a problem since the jury may have to decide which weapon the defendant used and the judge not knowing what the jury decided may have to decide whether the weapon was a machine gun.

As to the severity of the offense a thirty year minimum as contrasted to a five year minimum points to it being an element, not a sentencing factor.

As to the last factor legislative history on the issue is practically nil and doesn’t one way or the other. Considering the factors as a whole the Supreme Court found that the nature of the weapon is an element of the offense.

The Supreme Court, yesterday, reversed the denial of a writ of habeas corpus by the Eleventh Circuit Court of Appeals on the grounds that the Circuit Court failed to consider all possible exceptions to the rule that an appellate court accepts the facts as found by the trial court. In this case, which predated the Antiterrorism and Effective Death Penalty Act of 1996, the appellate court adopted the factual findings of the lower court. While generally appellate courts must accept the facts as found by the trial court 28 USCA 2254(d) names eight exceptions to the rule:

“(1) that the merits of the factual dispute were not resolved in the State court hearing;

“(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

“(3) that the material facts were not adequately developed at the State court hearing;

“(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

“(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

“(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

“(7) that the applicant was otherwise denied due process of law in the State court proceeding;

“(8) or unless … the Federal court on a consideration of [the relevant] part of the record as a whole concludes that such factual determination is not fairly supported by the record .” §2254(d) (emphasis added).

Jefferson was charged with murder of a co-worker on a fishing trip.

As a child, Lawrence Joseph Jefferson suffered major head damage when he was run over by a car. While it is disputed, his trial attorney claimed that an expert told him that it was not necessary to investigate the injury prior to trial. Only minimal evidence was introduced about the injury either at trial or at the sentencing hearing. The habeas alleges that trial counsel was incompetent for not fully investigating the effect of the injury on Jefferson’s behavior. Furthermore in considering the habeas the state court considered only whether or not Section 2254(d)(8) (see above) applied. It found that the factual determination was fairly supported by the record and therefore it denied the habeas.

But there was another issue the court did not consider. After the state court hearing on the habeas the trial court had an ex parte meeting with the prosecutor and asked the prosecutor to draft the decision. Not only was Jefferson not told about the ex parte meeting but his attorneys were neither given the chance to draft an order or to review the prosecutor’s before it was accepted in toto. Thus the state court did not consider whether the trial court may have violated Section 2254(d)(7) and denied Jefferson due process. The Supreme Court vacated the Circuit Court’s decision and remanded the case for further consideration.

Congress passed a bill authorizing the Federal government to petition the courts to institutionalize an offender beyond the time of his/her maximum sentence if that person either committed or attempted to commit an act of sexual violence or child molestation and the offender is a danger to society.

Four Florida inmates challenged their commitments under 18 U. S. C. §4248 in United States v, Comstock on the basis that the Constitution does not grant the Federal government authority to institutionalize them beyond their maximum prison commitment. Article I of the Constitution grants Congress specific limited powers. The Tenth Amendment states that all powers not granted to the Federal government are reserved for the states.

Despite the defendants arguing that Congress was without authority to commit individuals after their sentence was completed, the Court ruled that the legislation was authorized by the Necessary and Proper Clause, under which Congress can pass any law necessary and proper to the carrying out the duties enumerated in Article I. For example, one of the enumerated duties authorizes a postal service. The building of post offices is a necessary and proper tool to establishing a postal service.

The court evaluated five factors in determining that the post-prison commitment of sexually violent inmates is necessary and proper means to carry out its duty to provide mental health care for Federal prisoners. The factors are “(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope.” The Court ruled that the Necessary and Proper Clause allows Congress to pass legislation that is convenient, useful or conducive to carrying out one of its assigned duties. The Court found that while it is not independently proof of constitutionality the government has a long history of legislating prison mental health issues. Congress reasonably enacted the legislation to protect people who lived near Federal prisons from sexual violence by released inmates. The statute allows the Federal government to institutionalize those who would otherwise be released only after the states in which they were arrested and in which they live refuse to take custody of a dangerous inmate. Finally the court found that the post-prison institutionalization of sexually dangerous inmates was not too attenuated from Article I duties of Congress.

Justice Clarence Thomas dissented. He points to the pivotal 1819 case, McCulloch v. Maryland, Chief Justice Marshall wrote:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

Thus to be constitutional it must

satisfies a two-part test: First, the law must be directed toward a “legitimate” end, which McCulloch defines as one “within the scope of the [C]onstitution”–that is, the powers expressly delegated to the Federal Government by some provision in the Constitution. Second, there must be a necessary and proper fit between the “means” (the federal law) and the “end” (the enumerated power or powers) it is designed to serve.

The only crimes the constitution specifically authorizes the Federal government to prosecute are counterfeiting, treason, piracy, crimes committed on the high seas and those against the Law of Nations. No one today would limit the Federal government to prosecuting those crimes. Certainly any number of crimes can be prosecuted under the Necessary and Proper Clause. But it is time to reconsider some of the crimes prosecuted by the Federal government. For example, is it really necessary to have the federal government prosecute drug, sex, and internet crimes. The basic police duties of government should be left to the state governments.

The Supreme Court ruled yesterday that 18 U. S. C. §48 which criminalizes the commercial creation, sale, or possession of certain depictions of animal cruelty, but which does not penalize the actual cruelty a violation of the First Amendment.

The statute defines “depiction of animal cruelty” as

any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured,wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place,regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State;

As such many of the illegal acts are not acts of cruelty. It would include pictures of a veterinarian putting a cat to sleep and pictures in hunting magazines. The statute excludes

any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

But it would still excludes hunting magazines where the purpose of the picture is to entertain. Particularly in Washington DC where hunting is illegal. Pictures of legal cock fights in Puerto Rico would be illegal if sent to any of the fifty states.

The stated purpose of the legislation was to outlaw pictures of crush videos in which people are seen killing animals by stepping on them, often with high heels to give others sexual pleasure. But United States v. Stevens involved dog fighting.

Since the vast majority of pictures that violate the law, including hunting magazines, would not be considered by most people to be cruel the Supreme Court found that the legislation was overbroad and therefore unconstitutional.